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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sabina, Satyen Vaidya, JJ.
Jhallo Ram, Son Of Sh. Tikhna – Appellant
Versus
State Of Himachal Pradesh – Respondent
Criminal Appeal No. 427 of 2019
Decided On : 01-08-2022
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 and 52A - Code of Criminal Procedure, 1973 - Section 437 - amount of contraband – Seizure – Charas – Appeal against conviction - Appellant was apprehended with a bag on his back. On noticing police, appellant became perplexed. On suspicion, the bag carried by appellant was checked. 5 kg 30 grams of charas was recovered therefrom. Recovered charas was repacked in same bag and thereafter placed in a cloth parcel, sealed with six seals of impression ‘SB’. Relevant columns of NCB forms PW-4/C were filled - Appellant is held guilty of offence under Section 20 of Act for having been found in conscious possession of only small quantity of charas and is sentenced to undergo rigorous imprisonment for one year. Impugned judgment and sentence order passed by learned trial Court modified. (Para 27)
Finding of the court: Present case quantity of recovered contraband is to be taken as 25 grams only and therefore, respondent can be convicted for recovery of 25 grams charas from his conscious possession for which punishment has been provided under Section 20(b)(ii)(A) for a term which may extend the six months or with fine which may extend to Rs.10,000/- or/with both - Convinced that the sample of 26 grams examined by SFSL, Junga was not representative of entire bulk of substance and hence, the appellant cannot be held to have been found in conscious possession of 5 k.g. 30 grams of charas. The appellant can only be held to be in possession of 26 grams or at most 52 grams of charas by including the weight of other sample, which as per Act is small quantity.
Result: Appeal disposed of.
JUDGMENT :
Satyen Vaidya, J.
By way of instant appeal, appellant has assailed judgment and sentence order dated 5.7.2019, passed by the learned Special Judge, Chamba Division Chamba, H.P. in Sessions Trial No. 77 of 2018, whereby appellant has been convicted under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and has been sentenced to undergo rigorous imprisonment for a period of twelve years and to pay fine of Rs. 1,20,000/-. In default of payment of fine, to further undergo simple imprisonment for a term of one year.
2. The prosecution case in brief is that on 25.8.2018, police party comprising of HC Gias Lal PW-4, HC Ramesh Kumar PW-1, HC Dinesh Kumar PW-8, Constable Hem Raj PW- 2 and Constable Vinod Kumar PW-5 were on routine patrol duty near Koti Bridge within jurisdiction of Police Station, Sadar Chamba. Appellant was apprehended with a bag on his back. On noticing the police, appellant became perplexed. On suspicion, the bag carried by appellant was checked. 5 kg 30 grams of charas was recovered therefrom. The recovered charas was repacked in the same bag and thereafter placed in a cloth parcel, sealed with six seals of impression ‘SB’. Relevant columns of NCB forms PW-4/C were filled. Seal impressions were taken on the NCB forms. Specimen seal impression Ext. PW-1/A was preserved. Recovery and seizure memo Ext. PW- 1/B was prepared.
3. Rukka Ext. PW-2/A was sent to Police Station through Constable Hem Raj PW-2. FIR Ext. PW-9/K was accordingly registered. The further investigation was carried. The appellant was formally arrested and arrest memo Ext. PW- 4/A was prepared.
4. On completion of spot investigation, the police party returned to the Police Station. The case property was produced before Inspector/SHO Prashant Singh Thakur PW-13, who resealed the parcel by affixing four seals of impression ‘SC’. The relevant columns of NCB forms were filled. The case property was deposited with MHC of the Police Station, who incorporated necessary entries in Malkhana Register.
5. On 26.8.2018, PW-14 HC Santosh Kumar moved an application Ext. PW-14/A before learned JMFC, Chamba for proceedings under Section 52A of the Act. Two samples of 26 grams each were drawn and were separately sealed in cloth parcel. Five seals each with impression ‘JM’ were affixed. The remaining bulk was separately sealed.
6. One of the samples drawn by learned JMFC Chamba was sent to SFSL, Junga on 28.8.2018 for chemical examination. The report Ext. ‘PX’ was received from SFSL, Junga according to which, the sample was confirmed to be the Charas. Special report under Section 57 Ext. PW-7/C was prepared on 27.8.2018 and sent to Additional Superintendent of Police, Chamba through Constable Surinder Kumar PW-12.
7. The case property was destroyed on 5.11.2018 by a committee, headed by Superintendent of Police, Chamba and certificate Ext. PW-9/C was issued in that behalf.
8. On completion of investigation, challan was prepared and presented before the Court. Appellant was tried in Sessions Trial No. 77 of 2018 and was convicted and sentenced, as noticed above.
9. We have heard learned counsel for the parties and have also gone through the record carefully.
10. The prosecution examined as many as 14 witnesses. PW-1 HC Ramesh Kumar, PW-2 Constable Hem Raj, PW-4 HC Gais Lal, PW-5 Constable Vinod Kumar, PW-8 HC Dinesh Kumar were examined as sport witnesses. PW-6 HHC Ajay Kumar was a witness to re-sealing effected by Inspector/SHO Prashant Singh vide memo Ext. PW-6/B. PW-7 HC Sanjeev Kumar proved receipt of special report Ext. PW-7/C by Additional Superintendent of Police, Chamba, as also the relevant entries in the extract of register Ext. PW-7/B. PW-9 proved the safe custody of the contraband in Police Station, Sadar Chamba. PW-10 proved the photographs Ext. PW-10/A and Ext. PW-10/B, as also the preparation of CD Ext. PW- 10/C. PW-11 photographer Sher Khan proved photographs Ext. PW-1/C to Ext. PW-1/E and PW-5/A. He has also proved p
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